STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN J. JIMENEZ, )

)

Petitioner, )

)

vs. ) Case No. 07-1114

)

WHOLE FOODS MARKET, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale,, Florida, on May 15, 2007.

APPEARANCES

For Petitioner: Alan D. Jimenez, pro se

820 Northeast 19th Terrace Fort Lauderdale, Florida 33304

For Respondent: Jon K. Stage

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Respondent committed employment discrimination against Petitioner.

PRELIMINARY STATEMENT

By Employment Complaint of Discrimination dated August 22, 2006, Petitioner alleged that Respondent discriminated against

him in employment based on his race (South American Indian) and national origin (Hispanic) when it fired him on August 5, 2005.

By Notice of Determination: No Cause dated January 29, 2007, the Florida Commission on Human Relations determined that there is no reasonable cause to believe that an unlawful employment practice occurred.

By Petition for Relief dated February 27, 2007, Petitioner alleged that Respondent discriminated against him in employment when it fired him and replaced him with a non-Hispanic.

At the hearing, Petitioner called seven witnesses and offered into evidence one exhibit. Respondent called three witnesses and offered into evidence 14 exhibits. All exhibits were admitted.

Neither party ordered a transcript or filed a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently.

2. Respondent owns and operates a chain of grocery stores.

   
   

   Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005.

   Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He

   had been employed as a produce manager of the Fort Lauderdale store since April 2002.

3. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense.

4. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning.

5. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises.

6. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of

   Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion.

7. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor.

8. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee.

9. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner.

10. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.11(7), Fla. Stat. (2006).

12. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice to terminate an employee for reason of race or national origin.

13. Petitioner has failed to prove that Respondent discriminated against him based on race or national origin when Respondent terminated him.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2007.

COPIES FURNISHED:

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Alan D. Jimenez

820 Northeast 19th Terrace Fort Lauderdale, Florida 33304

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler

Alhadeff & Sitterson, P.A.

200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-001114

Orders for Case No: 07-001114